Reading the tea leaves: the Supreme Court and the future of coalition districts under section 2 of the Voting Rights Act.

• Author: Weinberg, Lauren R.

INTRODUCTION

Every ten years, state legislatures or specially designated commissions (1) convene to redraw legislative district lines that comport with new census data (2) in a process known as redistricting. (3) It is from these districts that members of the House of Representatives, state legislatures, and many city councils are elected. (4) The law that emanates from these legislative bodies impacts nearly every aspect of life. (5) Thus, the manner in which legislative districts are drawn has far reaching implications. They may profoundly impact the composition of the body politic (6) which, in turn, informs the policies that ensuing legislators pursue and enact. (7)

It is therefore of paramount importance that districts are drawn to ensure that all citizens have an equal opportunity to elect representatives of their choice. In order to make certain that each vote is of equal weight, the Constitution requires that redistricting plans be drawn as consistently populated, namely, that all legislative districts have the same population size. (8) This bedrock principle is known as "one person, one vote." (9) Redistricting plans must also comport with the Voting Rights Act of (1965), as amended, which safeguards minority voting strength. (10) Both federal and state courts are available as forums in which to challenge a redistricting plan that does not comply with the mandates of the Equal Protection Clause of the Constitution (11) and/or the Voting Rights Act. (12)

Section 2 of the Voting Rights Act requires the creation of districts for protected racial and language minorities that do not dilute their voting strength, provided certain criteria are met. (13) These districts are commonly described as "majority-minority" districts. (14) The failure to draw "majority-minority" districts for any of the protected race or language minorities is actionable under section 2. (15) However, the circuit courts of appeals are split over the question whether section 2 requires the creation of coalition districts. (16) Coalition districts are electoral districts for two minority groups each of which individually would not meet the criteria requiring the construction of a majority-minority district under section 2, (17) but which do meet those criteria when combined as a coalition. (18) The Supreme Court has not been presented with a case that directly raises this issue. This Note will explore whether, and to what extent, coalition districts are required under section 2 of the Voting Rights Act--and correspondingly, whether, and to what extent, the failure to create such coalition districts constitutes a section 2 violation--in light of recent Supreme Court authority. (19)

Part I provides a brief overview of the history of section 2 of the Voting Rights Act and the requirements that must be met to state a claim for vote dilution. Part II summarizes the split among the circuit courts of appeals on the issue of coalition districts. Part III discusses the trend in section 2 vote dilution claims exemplified in the recent Supreme Court cases of Bartlett v. Strickland (20) and Perry v. Perez. (21) Finally, Part IV analyzes the likely outcome of a Supreme Court contest over coalition districts in view of these recent Supreme Court decisions.

1. BACKGROUND

   1. A Brief History of Section 2 of the Voting Rights Act

      African-Americans were granted suffrage with passage of the Fifteenth Amendment (22) in 1870. (23) However, nearly a century later, African-Americans still remained disenfranchised in several states that used discriminatory "literacy tests and similar voting qualifications" (24) as voting prerequisites. (25) The Voting Rights Act of 1965 was designed to eliminate discriminatory election practices that obstructed African-Americans' right to exercise their voting franchise. (26) Section 2 of the Voting Rights Act was enacted with the intent to remediate these evils (27) and complement the protections afforded under the Fifteenth Amendment. (28) The provisions of section 2 are universal and apply to every jurisdiction that draws lines for election districts. (29) Section 2 states:

      (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.

      (b) A violation of [section 2] ... is established if, based on the totality of circumstances, (30) it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by [section 2] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. (31)

      As originally enacted, the protections of section 2 of the Voting Rights Act extended exclusively to African-Americans who historically had suffered from discrimination with respect to their exercise of their right to vote. (32) In 1975, Congress amended the Voting Rights Act to broaden the protected class under section 2 to include the following language minorities: Native Americans, Asian Americans, Alaskan Natives, and Hispanic Americans. (33) In 1982, section 2 was further amended to clarify that it renders unlawful any "standard, practice, or procedure ... which results in a denial or abridgement to the right of any citizen of the United States to vote on account of race or color ...," (34) Under this discriminatory effects standard, a violation of section 2

      is established if, based on the totality of circumstances, (35) it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by ... [the Act] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. (36) B. Vote Dilution Under Section 2

      Section 2 bars any practice that dilutes the voting strength of protected minorities and, correspondingly, gives rise to a cause of action where vote dilution is found. (37) Vote dilution exists where voting schemes "operate to minimize or cancel out the voting strength of racial [minorities in] the voting population." (38) In redistricting, the "[dilution of racial minority group voting strength may be caused by the dispersal of [a protected minority group] into districts in which they constitute an ineffective minority of voters or from the concentration of [a protected minority group] into districts where they constitute an excessive majority." (39) These two dilutive practices are commonly known as "cracking" (40) and "packing," (41) respectively. "Cracking" dilutes minority voting strength because the minority group is divided "among various districts so that it is a majority in none." (42) Alternatively, when a redistricting plan "packs" minorities into a single district, minority voting strength is diluted because, but for the packing, the minority would have been able to elect more candidates of their choice. (43)

   3. The Gingles Preconditions: Establishing A Vote Dilution Claim Under Section 2

      In the seminal case of Thornburg v. Gingles, (44) the Supreme Court, construing section 2, as amended in 1982, set forth three "necessary preconditions" (45) ("the Gingles factors" or "the Gingles preconditions") that a minority group must demonstrate in order to establish a claim for vote dilution under section 2 of the Voting Rights Act. (46) "First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district." (47) "Second, the minority group must be able to show that it is politically cohesive." (48) "Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it ... to defeat the minority's preferred candidate." (49) It is only if these three preconditions are met (50) that courts will look to the totality of the circumstances to determine "based 'upon a searching practical evaluation of the "past and present reality,'" ... whether the political process is equally open to minority voters." (51) Under such circumstances, to avoid vote dilution, those who redistrict are required to create majority-minority districts (52) to protect the minority's ability to elect a candidate of its choice. (53) Section 2 of the Voting Rights Act is silent on the matter of minority coalitions. (54)

2. COALITION DISTRICTS AND THE SPLIT AMONG THE CIRCUITS

   The question has arisen whether impermissible dilution exists where two protected minority groups, each of which individually does not meet the Gingles preconditions, can be combined as a coalition and thus qualify for section 2 protection. (55) Three circuits, the Fifth, the Eleventh, and the Sixth, have opined on this question. (56) The Fifth Circuit (57) and the Eleventh Circuit (58) have found coalition districts to be actionable under section 2 of the Voting Rights Act, while the Sixth Circuit has taken the opposite view. (59) Two other circuits, the Ninth (60) and the Second, (61) have implicitly endorsed coalition claims so long as they satisfy the Gingles preconditions without specifically ruling on the question. (62)

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